U.S. v. Gjieli

• Decision Date: 21 September 1983
• Docket Number: Nos. 81-1087,1088 and 1089,s. 81-1087
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gjergj GJIELI, (81-1087), Nickola Lulgjuraj, (81-1088), Zeff Lulgjuraj, (81-1089), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 968

717 F.2d 968

UNITED STATES of America, Plaintiff-Appellee, v. Gjergj GJIELI, (81-1087), Nickola Lulgjuraj, (81-1088), Zeff

Lulgjuraj, (81-1089), Defendants-Appellants.

Nos. 81-1087, 1088 and 1089.

United States Court of Appeals, Sixth Circuit.

Sept. 21, 1983.

Leslie R. Seeligson, argued, Ann Arbor, Mich., John J. Pomann, Evan H. Callanan, Westland, Mich., for defendants-appellants in No. 81-1087.

Richard A. Rossman, U.S. Atty., John N. Thompson, Jr., Sheldon Light, (argued), Asst. U.S. Attys., Detroit, Mich., for plaintiff-appellee in all cases.

John J. Pomann, argued, Westland, Mich., for defendants-appellants in No. 81-1088.

Evan H. Callanan, argued, Westland, Mich., for defendants-appellants in No. 81-1089.

Before LIVELY and KENNEDY, Circuit Judges, and WILHOIT, ^* District Judge.

KENNEDY, Circuit Judge.

Defendants Gjergj Gjieli, Nickola Lulgjuraj and Zeff Lulgjuraj appeal from their jury convictions of bribery of a public official, 18 U.S.C. Sec. 201(b)(3), and conspiracy to bribe a public official, 18 U.S.C. Sec. 371. All three argued in the District Court and assert on appeal that the acts charged in the indictment and described by the evidence did not constitute a violation of 18 U.S.C. Sec. 201(b)(3) because it was not within the scope of the official authority of the bribed official to effect the object of the bribe. Second, the defendants urge reversal under the due process clause and the Court's supervisory powers because of certain misbehavior by the government in the investigation and prosecution of the charges. We find that the defendants' acts violated the statute. The misbehavior of the government, although serious, does not warrant dismissal of the charges. We, therefore, affirm the convictions.

I.

The transcript of the trial, including taped conversations, reveals an unusual tale. Robert Van Hengel, an agent of the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department (ATF), was a regular customer at a bar in Detroit where one of the defendants, Gjergj Gjieli, was employed as a bartender. Gjieli was interested in purchasing a short wave radio set from Van Hengel. On June 11, 1980, during negotiations over the radio which Gjieli agreed to purchase, Gjieli suddenly told Van Hengel that he had $100,000 for him, plus the biggest present he had ever received. When questioned, Gjieli wrote the name "Zef [sic] Lulgjuraj" on a slip of paper and handed it to the agent. Gjieli then stated that Lulgjuraj was in the State Prison of Southern Michigan at Jackson, Michigan, (SPSM or Jackson) and that "his people" wanted him out so he could return to his homeland, Albania. ¹ Van Hengel warned Gjieli that such an offer to a federal agent could get him in serious trouble. Gjieli nevertheless suggested that Van Hengel might have contacts and perhaps could arrange a break-out or transportation for Lulgjuraj who could escape at some unguarded moment. Van Hengel told Gjieli that he would have to think about the matter and would contact him later.

The next day Van Hengel reported the conversation to his supervisor in the Detroit office of ATF. On June 13, Van Hengel met with Special Agent Jim Covert of ATF Internal Affairs and a detective sergeant of the Michigan State Police. On June 16, Van Hengel met with Covert and the Michigan State Police sergeant as well as an FBI agent. ² Van Hengel was fitted with a body recorder and a radio transmitter at this meeting. A short time later Van Hengel went to the bar and engaged Gjieli in conversation which was secretly taped. Gjieli assured Van Hengel that the $100,000 would be "cash on the line." A test run was discussed, with Van Hengel suggesting that Lulgjuraj would be "moved around a little bit to show what we can do." Van Hengel again requested time to think over Gjieli's proposal.

On July 10, after several weeks in which he had no contact with Gjieli, Van Hengel returned to the bar with another ATF agent. A bartender told Van Hengel that Gjieli no longer worked at the bar having quit to return to Albania with his parents. Van Hengel returned to the bar the next day to get Gjieli's telephone number, but the bartender had not located it. On July 13, Van Hengel again went to the bar. Neither the bartender nor the owner of the bar was able to supply Gjieli's telephone number. Efforts to locate Gjieli over the next few days proved futile.

On July 18, Van Hengel and Covert met with an Assistant United States Attorney. It was agreed that a "ruse" was needed to signal Gjieli that Van Hengel was ready to deliver. ³

To effect the "ruse" the Assistant United States Attorney presented a request for a writ of habeas corpus ad testificandum to a federal District Judge, representing that Zeff Lulgjuraj was a witness in an arson case and that he would be taken from Jackson State Prison to appear before a federal grand jury in Detroit which was investigating the arson. In fact there was no such arson investigation by a grand jury at that time, and there was no plan to take Lulgjuraj into Detroit. Unaware of the deception, the District Judge signed the writ. An ATF agent took the writ to the SPSM on July 22. The agent posed as a Deputy United States Marshal and obtained custody of Lulgjuraj for the pretended purpose of taking him before a federal grand jury. A group of ATF agents and marshals then took the prisoner to the Jackson Municipal Airport where Van Hengel was waiting in an unmarked Michigan State Police car.

Van Hengel got into the car with Lulgjuraj and initiated a conversation about "George," the bartender at De Luca's Bar. Lulgjuraj responded that he knew him and had last talked to him "about 5, 6 months, 5 months." He said he knew nothing of any conversation between Van Hengel and George. Van Hengel suggested that the next time Lulgjuraj talked with Gjieli, "You tell him we had you out. This was my idea to get you here. Just tell him the guy he talked to in the bar, in De Luca's, we had you out. Airplanes were here. OK?" When Van Hengel mentioned "the hundred thousand," Lulgjuraj revealed no apparent knowledge of Gjieli's offer to Van Hengel. When asked specifically if "the hundred thousand is there," Lulgjuraj replied, "I believe so. If he told you that, that's you know, regarding help me, something." Lulgjuraj told Van Hengel to call his home and ask for his son Nick. The meeting ended with Lulgjuraj promising to call his son Nick to tell him to get in touch with Van Hengel either that night or the next day.

Van Hengel received a telephone call from Nick Lulgjuraj later on July 22 and returned the call the next day. After talking with Nick, Van Hengel received a call from Gjieli who said he was returning to Detroit on July 24. Late in the afternoon of the 24th Van Hengel and another ATF agent met Gjieli and Nick Lulgjuraj at a motel in Detroit and discussed the payment of $10,000 "front money." The same evening Gjieli and Nick delivered $10,000 in currency to the agents. Both meetings were taped on hidden recorders. By prearrangement Nick Lulgjuraj delivered $90,000 in currency to Van Hengel at a motel room in Detroit on August 5. After monitoring the meeting and determining that the delivery had been made, Agent Covert entered the room and arrested Nick Lulgjuraj. Gjieli was arrested the same day in New York.

On August 25, 1980, a federal grand jury in Detroit indicted Gjergj Gjieli, Nick Lulgjuraj and Zeff Lulgjuraj of conspiracy to bribe and bribery of a public official. ⁴

Defendants assert that it is not a federal offense to offer or to pay a bribe to an official of the United States for the performance of an act which would violate state law but which does not violate a statute of the United States and is not a part of an official duty. Because Van Hengel had no duty with respect to the custody of a state prisoner and could not use his official position to effect the escape of Zeff Lulgjuraj the defendants contend that the statutory elements of Sec. 201(b)(3) cannot be satisfied. ⁵ We disagree.

Statutory Requirements of Section 201(b)(3) Violations

Title 18 U.S.C. Sec. 201 provides in pertinent part:

(b) Whoever, directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official ... with intent--

(1) to influence any official act; or

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(3) to induce such public official ... to do or omit to do any action in violation of his lawful duty;

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(e) .... Shall be fined ... or imprisoned ... or both, and may be disqualified from holding any office of honor, trust, or profit under the United States. (emphasis added)

The defendants in the present case were indicted and convicted of violating subsection (3) of Sec. 201(b).

Three statutory elements must be satisfied to establish a Sec. 201(b)(3) violation. First, the bribed individual must be a "public official" (or other person named in the statute). Second, the briber must directly or indirectly, corruptly give, offer or promise something of value to a public official. Third, in doing so, the briber must have the intent to induce the public official to act in violation of his lawful duty. 18 U.S.C. Sec. 201(b)(3). The indictment and the evidence at trial set forth and established each of these elements.

A. Public official requirement

The definitional section of the statute, Sec. 201(a), states:

(a) For the purpose of this section:

'public official' means Member of Congress, the Delegate from the District of Columbia, or Resident Commissioner, either before or after he has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia in any official function, under or by authority of any such department, agency, or branch of Government, or a juror; and

'person who has been selected to be a public official' means any person...